Daycare Dilemma, Firing: Family Status & Employment Law

In a recent employment-law case, a dental office manager was awarded more than $62,000 in damages for wrongful dismissal and breach of the Ontario Human Rights Code. Partridge v. Botony Dental Corporation, 2015 ONSC 343 (CanLII) considers wrongful dismissal as a reprisal for a request for accommodation for childcare arrangements.

The plaintiff, Ms. Partridge, filed a Superior Court claim against Botony Dental Corporation, for wrongful termination and a human rights violation. The defendant corporation has a family and cosmetic dental practice located in Barrie, Ontario. Ms. Jauhal is the sole director, officer and shareholder of the defendant corporation. The plaintiff was employed as a hygienist and then as the Office Manager for the dentistry.

“The court’s censure is warranted by way of an award that will act as a deterrent to employers who are unwilling to accommodate childcare arrangements, except where legitimate, justifiable grounds exist for being unable to do so.”

~ Justice Healey

The defendant claimed that it had just cause to terminate the plaintiff and submitted a counterclaim for damages for revenue and value of dental practice losses.

    Wrongful Dismissal: The Ultimate Reprisal

At the time of the dismissal, the plaintiff was returning to work after maternity leave, in a hygienist position rather than her previous office manager position. The defendant unilaterally changed the plaintiff’s terms of employment. The court determined that when the plaintiff tried to enforce her rights provided under the Employment Standards Act, she was penalized.

The court found the defendant contravened its statutory obligations in its behaviour toward the plaintiff. Justice Healey found that “all of Jauhal’s actions following Partridge’s reference to her rights under the ESA constituted a reprisal, the dismissal being the ultimate contravention of the Act.” The Court awarded $42,517.44 damages for the wrongful dismissal, and dismissed the defendant’s counterclaim.

Justice Healey discussed the leading case on the family status issue — Attorney General of Canada v. Johnstone, 2014 FCA 110 (CanLII), which found that “family status incorporates parental obligations such as childcare obligations” – and held that the defendant discriminated against the plaintiff based on family status.

    Family Status includes Childcare Obligations

The defendant had unilaterally changed the plaintiff’s hours to 10:00 a.m. to 6:00 p.m. even though the plaintiff previously worked 9:00 a.m. to 5:00 p.m. No reasons were provided to explain why the office could not open at the earlier hour. This change interfered with Partridge’s childcare obligation “in more than a trivial way,” Justice Healey found. He applied the three-part test established in British Columbia (Public Service Employee Relations Commission) v. BCGSEU and determined the schedule change was not a bona fide occupational requirement, and not reasonably necessary to accomplish the legitimate work-related task. Court found the change was “reprisal based, and accordingly not adopted in good faith.”

On the human rights portion of the claim, the plaintiff was awarded $20,000 for the breach. Justice Healey wrote:

    “The discrimination not only has the effect of causing injury to dignity, feelings and self-respect, but may have economic impact on individuals who can often least afford it. The court’s censure is warranted by way of an award that will act as a deterrent to employers who are unwilling to accommodate childcare arrangements, except where legitimate, justifiable grounds exist for being unable to do so.”
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